R v Cowe - [2010] SASCFC 46

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COWE
[2010] SASCFC 46
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice David)
5 November 2010
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence – appellant pleaded guilty to aggravated recklessly causing harm to his daughter aged four months – appellant sentenced to two years’ imprisonment with a non-parole period of 12 months – whether sentencing Judge erred in failing to suspend the sentence – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 24, referred to.
Dinsdale v The Queen (2000) 202 CLR 321, applied.
R v Galffy [2009] SASC 261, distinguished.
House v The King (1936) 55 CLR 499; R v Partridge [2008] SASC 323; R v Johnston [2007] SASC 300, considered.

R v COWE
[2010] SASCFC 46
Court of Criminal Appeal: Sulan, White and David JJ

SULAN J: On 8 July 2010, the appellant, Hamish Alexander Cowe, was sentenced to two years’ imprisonment, with a non-parole period of 12 months for the offence of aggravated recklessly causing harm to his daughter, to whom I shall refer as “S”, contrary to s 24(2) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for the offence is seven years’ imprisonment. The offence occurred between 9 March 2009 and 10 April 2009 when the victim was aged four months.
The sole ground of appeal is that the sentencing Judge was in error in failing to suspend the sentence of imprisonment. For the reasons which follow, I would dismiss the appeal.
Background
The appellant was 25 years of age at the time of the offence. He had been in a relationship with the victim’s mother for approximately five years. They had two children. S, the victim, was the younger. Since this offending, the relationship has ceased. The children have been placed in separate foster care under the supervision of Families SA. Until his imprisonment, the appellant continued to have supervised access to his children.
The victim, who was born in November 2008, suffered complications at birth from a condition whereby her oesophagus and windpipe were joined. After being released from hospital, she required special care when being fed. The appellant had difficulty dealing with the baby’s medical condition. The baby continued to suffer ill-health after she was released from hospital.
On 9 April 2009, the victim was seen by Dr Donald at the Lyell McEwin Hospital for a routine appointment. Her weight had not changed since she had been discharged a month before, so she was admitted to the hospital for further investigation. A routine spine X-ray revealed fractures of the posterior part of the right fourth, fifth and sixth ribs. Further…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cowe

Details

AGLC: R v Cowe [2010] SASCFC 46
Case: [2010] SASCFC 46
Decision Date: 5 November 2010

CaseChat Overview and Summary

In *R v Cowe*, the appellant appealed against a sentence imposed by the sentencing judge. The appellant had pleaded guilty to aggravated recklessly causing harm to his four-month-old daughter, for which he was sentenced to two years' imprisonment with a non-parole period of 12 months. The sole ground of appeal was that the sentencing judge erred in failing to suspend the sentence.

The legal issue before the appellate court was whether the sentencing judge had erred in exercising their discretion by not suspending the appellant's sentence of imprisonment. The court was required to determine if, in the circumstances of the case, the sentence was unreasonable or plainly unjust, thereby justifying interference with the sentencing judge's discretion.

The court reasoned that it would only interfere with a sentencing judge's discretion if a specific error could be demonstrated, or if the sentence was demonstrably unreasonable or plainly unjust. The offending was considered serious, involving significant injuries to a vulnerable child that required a high degree of force. While acknowledging the appellant's stress and the momentary lapse that led to the offence, the court found that the head sentence and non-parole period were merciful. The court emphasised the seriousness of such offences, the responsibility to protect the vulnerable, and the importance of general deterrence. Ultimately, the court concluded that the sentencing judge had considered all relevant factors, and no error in the exercise of discretion had been demonstrated. The refusal to suspend the sentence was deemed not unreasonable and well within the judge's discretion.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The sole ground of appeal is that the sentencing Judge was in error in failing to suspend the sentence of imprisonment. For the reasons which follow, I would dismiss the appeal.Background The appellant was 25 years of age at the time of the offence. He had been in a relationship with the victim’s mother for approximately five years. They had two children. S, the victim, was the younger. Since this offending, the relationship has ceased. The children have been placed in separate foster care under the supervision of Families SA. Until his imprisonment, the appellant continued to have supervised access to his children. The victim, who was born in November 2008, suffered complications at birth from a condition whereby her oesophagus and windpipe were joined. After being released from hospital, she required special care when being fed. The appellant had difficulty dealing with the baby’s medical condition. The baby continued to suffer ill-health after she was released from hospital. On 9 April 2009, the victim was seen by Dr Donald at the Lyell McEwin Hospital for a routine appointment. Her weight had not changed since she had been discharged a month before, so she was admitted to the hospital for further investigation. A routine spine X-ray revealed fractures of the posterior part of the right fourth, fifth and sixth ribs. Further investigations revealed that there were 20 rib fractures with varying degrees of callous formation, which indicated they were likely to be of differing ages. On 23 April 2009, the medical staff met with the victim’s parents and they sought an explanation for the various skeletal injuries. No satisfactory explanation was forthcoming. Subsequently, on 13 May 2009, the appellant told the doctor that there might have been an occasion when he squeezed the victim’s chest because she would not stop crying. The appellant was interviewed by police on 29 May 2009. He told the police that there was an occasion when the victim’s mother was having a shower and she asked him to feed S a bottle. He said:[1] I could not settle S at all; at all she was just getting out of hand, she wouldn’t drink or anything and just kept crying an [sic] I just got that frustrated that I squeezed her and I didn’t think I squeezed that hard and obviously I did and I admit to that…[1] AB 80. He told the police that he was unaware that he had caused any significant injuries to the child, because there was no evident bruising or swelling. He said he did not mean to hurt her. Dr Donald, a forensic paediatrician who treated S, was of the opinion that, at the time of X-ray, the rib fractures would have been at least seven to ten days’ old. He was of the opinion that such fractures occur because of either high force direct impact trauma, or chest encirclement by adult hands with violent chest compression, or a forceful combination of both types of assault. The rib fractures in this case were not explained, as the detail provided by the appellant to the medical staff and to the police was insufficient for Dr Donald to form a conclusive opinion as to exactly how the fractures were sustained. Nevertheless, it is clear that a significant degree of force was necessary to cause those rib fractures which had been identified.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J (dissent)

In circumstances where no specific error can be demonstrated, this Court will only interfere if it is satisfied that, having regard to the circumstances, it is apparent that the sentence is unreasonable or plainly unjust. Conclusion The offending in this case was serious offending. The injuries sustained by the child were significant and required a high degree of force. Although the offending occurred as a result of a momentary lapse in a stressful situation, that was reflected in what can only be regarded as a merciful head sentence and non‑parole period. It has been observed that offences of this nature are particularly serious and that the Court has a responsibility to act to protect the weak and vulnerable.[8] The requirement of the Court to have regard to general deterrence in such cases has been repeatedly stated by this Court.[9][8] See R v Partridge [2008] SASC 323.[9] See R v Johnston [2007] SASC 300. In my view, the Judge had regard to all relevant factors. It has not been demonstrated that there was any error in the exercise of his discretion. The refusal to suspend the sentence was not unreasonable. It was well within the Judge’s discretion to conclude that good reason did not exist to suspend the sentence. I would dismiss the appeal. I agree that the appeal should be dismissed. I agree with the reasons of Sulan J. DAVID J: I would dismiss the appeal. I also agree with the reasons of Sulan J.

Ratio Decidendi

Legal Principle Established

Established by:

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